Excerpt:motor vehicles act, 1939 - section 96(2)(b)(ii)--liability of insurer--driver holding licence for light motor vehicle hut driving medium motor vehicle--held, driver had no valid licence and insurer is not liable to pay compensation.;if a driver holds a licence to drive only a light motor vehicle and he drives a medium motor vehicle, the vehicle will be deemed to have been driven by a driver who had no valid licence to drive and, therefrom the insurer will not be liable. here in the instant case all the requirements to make out a valid defence under section 96(2)(b)(ii) of the act are there. the insurer is, therefore, not liable to pay compensation or to reimburse and indemnify the owner of the bus rsq 885.;appeal dismissed - - he was a youngman of the age of 31 years with perfect health..........the defence that on the day of the accident, the driver was holding a licence only to drive the light motor vehicle. the bus in question, which caused the accident, was heavy passenger bus, for which the driver had no valid driving licence. one of the stipulations in the insurance policy is that the driver driving the bus must hold a valid licence to drive the motor vehicle. since arjunsingh had no valid licence to drive heavy transport vehicle, the insurer cannot be called-upon to pay compensation for an accident arising out of driver's rash and negligent driving of the bus. relevant issues were raised and evidence of the parties was recorded. both the parties adduced oral as well as documentary evidence. on the conclusion of the trial the tribunal held (1) the accident had taken.....

Judgment:

S.S. Byas, J.

1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 (for brevity 'the Act' here in after) has been preferred against an award of the Claims Tribunal, Jodhpur dated December 7, 1981, by which the appellants (driver and owner of the bus) were directed to pay sum of Rs. 75,000/- as compensation to the claimants.

2. The claimants are the parents, widow and minor daughters of the deceased-victim Sultansingh. They presented an application under Section 110-A of the Act against the appellants and the insurer, claiming a sum of Rs. 1,25,000/- as compensation. The averments disclosed in the application are that at about 10.30 A.M. on January 25, 1978, Sultan Singh was going on a bicycle from Paota square to Sojati Gate. He was on the extreme left edge of the road. While he was proceeding on the bicycle, mini-bus No. RSQ 8851 came from behind, Appellant Arjun singh was driving it at that time. He was driving it so rashly and negligently that it knocked down Sultansingh. The bus even then did not stop. It rolled over Sultansingh and crushed him completely. As a result, Sultan singh sustained multiple severe injuries on his person. He did not survive and passed away instantaneously on the spot. The appellant Bahadursingh is the owner of the bus. Sultansingh was employed as Electrician Grade-II in the Rajasthan State Transport Corporation. His monthly emoluments were Rs. 352/- in total. He was a youngman of the age of 31 years with perfect health and sound physique. In the normal course, he was to be superannuated on his attaining the age of fifty-five years. He was the only bread--winner of the family and was contributing approximately a sum of Rs. 250/- per month to the claimants. They claimed a sum of Rs. 75,000/-as the loss of dependency benefit at twenty five years' purchase and a sum of Rs. 50,000/- for mental anguish and suffering. It was alleged that the accident had taken place and Sultansingh died on account of rash and negligent driving of the bus by its driver. The claim application was resisted by the owner, driver and the insurer through different written statements. The defence taken by the owner and the driver are identical. They admitted that the driver Arjunsingh was driving the bus at the time of the accident, but denied all other averments. According to them, Sultansingh was going ahead of the bus on a bicycle. He was on a the right side of the bus. All of a sudden, he took a turn towards his left. The driver was driving the bus slowly.

3. The accident had taken place because of the sudden turn taken by Sultansingh from right to left. The quantum of compensation was challenged. The insurer raised the defence that on the day of the accident, the driver was holding a licence only to drive the light motor vehicle. The bus in question, which caused the accident, was heavy passenger bus, for which the driver had no valid driving licence. One of the stipulations in the Insurance Policy is that the driver driving the bus must hold a valid licence to drive the motor vehicle. Since Arjunsingh had no valid licence to drive heavy transport vehicle, the insurer cannot be called-upon to pay compensation for an accident arising out of driver's rash and negligent driving of the bus. Relevant issues were raised and evidence of the parties was recorded. Both the parties adduced oral as well as documentary evidence. On the conclusion of the trial the Tribunal held (1) the accident had taken place due to the rash and negligent driving of the bus RSQ 8851 by its driver Arjunsingh; (2) the claimants were entitled to recover a sum of Rs. 75,000/- as compensation from the owner and driver of the bus, and (3) the insurer was not liable for the payment of compensation so assessed because driver of the bus was not holding a valid licence to drive the heavy passenger motor vehicle. An award was accordingly made. Aggrieved against the said award the owner and the driver have come up in appeal,

5. Mr. Vyas did not challenge the finding of the Tribunal that the accident had taken place on account of the rash and negligent driving of the bus by its driver Arjunsingh.

6. In assailing the award, two contentions were raised by Mr. Vyas. They are:

1. the compensation was quantified very liberally rather extravagantly, and

2. the insurer was wrongly discharged from the liability for making payment of the compensation to the claimants. The owner was entitled to be reimbursed and indemnified by the insurer.

7. It would be proper to take-up these contentions at seriatim.

Re: 1-Computation of Compensation:

8. The Tribunal held that the deceased-victim Sultansingh was of 32 years in age at the time of his death. His monthly emoluments were Rs. 352/-. Taking the normal span of life to be of sixty-five years in the quinquennial 1970-80, the Tribunal applied the multiplier of thirty-three years. He made a deduction of 2/3 of emoluments as the amount the deceased was spending on himself. Thus, the 2/3 of Rs. 352/- was taken as multiplicand. Working on this formula, he multiplied the 2/3 of Rs. 352/- by thirty-three years. The amount cams to Rs. 92,664/-. The Tribunal further held that no compensation on account of mental anguish and suffering was permissible. Since the claimants had claimed a sum of Rs. 75,000/- as the loss of dependency benefit; the Tribunal made an award of Rs. 75,000/- in favour of the claimants.

9. It was argued by Mr. Vyas that the compensation has been assessed very liberally and passed on the very high side. The Tribunal crept into an error in allowing of the loss of dependency benefit at thirty three years' purchase. It was, on the other hand, contended by Mr. Singhvi that in the quinueqnnial 1970-80, the normal span of an Indian citizen has been taken to be of sixty-five years. Sultansingh was to retire at the age of fifty-five years. Even after his retirement, he was to receive pension and was expected to add his earing by doing some job. In the quinquennial 1970-80, the average span of life has been taken to be of sixty-five years. In Smt. Manjusri v. B.L. Gupta 1977 A.C.J. 134, their Lordships of the Supreme Court also accepted the normal span of life or an Indian citizen to be of sixty-five years. As such, the multiplier of thirty-three years (65-32) was rightly applied by the Tribunal.

10. Certificate Ex. 16 issued by the Rajasthan State Road Transport Corporation, Udaipur (where the deceased was posted as Electrician Grade-II at the relevant time) shows that his monthly emoluments were Rs. 352/- Generally 1/3 deduction is allowed as the amount for the maintenance of the victim himself. As such, the Tribunal was again correct in taking the 2/3 or Rs. 352/-as the multiplicand, allowing the remaining 1/3 as the amount the deceased was spending on himself for his subsistence and maintenance. The approach of the Tribunal as regards the multiplicand and multiplier does not appear to be incorrect.

11. It was contended by Mr. Vyas that the loss of dependency benefit at thirty-three years' purchase is too long and should be reduced. I am unable to accept the contention. Where the deceased gets the fixed income and the period of earning can be calculated, there appears no logic and reason as to why compensation for the whole period of earning capacity should not be allowed. The contention of Mr. Vyas is not tenable.

12. It was also argued by Mr. Vays that deductions on account of imponderables and the payment of compensation in a lump-sum have not been allowed by the Tribunal. These deductions have become a part and parcel to be taken into consideration while assessing the compensation. It is true that no deductions on account of imponderables and payment of the compensation in a lump-sum have been made by the Tribunal. The Tribunal has not committed any error in not allowing the deductions. Looking to the inflation and incessant steep rise in price, index with no tendency to come down, the Tribunal was right in not making any deductions on account of imponderables and the payment of the compensation in a lump-sum. It may be pointed out that only a sum of Rs. 10,000/- has been paid as compensation so far by the appellants to the claimants and the payment of the remaining balance has not been made so far. The rule of deductions is not rigid and inflexible. It depends on the fact and circumstances of each case. The deceased, in the normal course, was expected to earn promotions in future. The question of promotions and increments in emoluments have not been taken into consideration by the Tribunal. In these circumstances, it would not be proper to allow deductions on account of imponderables and payment of the compensation in a lump-sum. This contention, thus, also fails.

13. On behalf of the claimants, an application has been filed to seek amendments in the application for claim. In the application for claim, a sum of Rs. 75,000/- has been taken as the loss of dependency benefit. Since the Tribunal has assessed the loss of dependency benefit in a sum of Rs. 92,664/-, by the amendment is ought that the original figure of Rs. 75,000/-be substituted the figure of Rs. 93,000/-. This application for amendment was submitted recently on March 13, 1985. The award was made December, 1981 and the appeal by the owner and the driver was filed in March, 1982. The application for amendment is, thus, highly belated. I see no good grounds to allow the amendment now sought so late. The claimants' application for amendments is, therefore, disallowed.

14. The compensation was, thus, rightly quantified by the Tribunal. No alteration or modification is required. The first contention of Mr. Vyas has, thus, no force.

Re: 2 Liability of the insurer:

15. Developing his next contention Mr. Vyas argued that the Tribunal wrongly exonerated the insurer from the liability of making the payment of compensation to the claimants to reimburse or indemnify the owner. It was urged that the bus was registered as light passenger motor vehicle by the Registering Authority. The driver Arjunsingh held the effective licence for driving a light motor vehicle and yet the tribunal took that the bus was a medium motor vehicle and the driver had no effective licence for driving it. It was further argued that even if the bus is taken as medium passenger motor vehicle and the driver had no valid licence to drive such a type of vehicle, still then the insurer is liable to pay compensation to the claimants.

16. Countering these arguments, Mr. Mehta learned Counsel for the insurer argued that there was a specific stipulation in the insurance policy Ex. A 1 that the driver of the insured bus should hold a driving licence to drive the motor vehicle which means the medium passenger motor vehicle in the instant case. Driver Arjunsingh had the licence to drive a light motor vehicle only and not the medium motor vehicle. The category of the motor vehicle: whether it is light or medium or heavy is to be determined with reference to the definitions given in Section 2 of the Act. It is the registered weight of the vehicle which determines its type as to whether it is light, medium or heavy. The registered laden weight of the bus in question, as mentioned in the Certificate of Registration Ex. Al, was 4492 kg. As per definition of medium passenger motor vehicle given in Section 2(14-A) of the Act, the bus in question should be taken to be a medium passenger motor vehicle and not a light motor vehicle. Though the bus in question was mentioned as light motor vehicle in Ex. Al, it does not change the type of the vehicle and renders no help to the appellant. Reliance in support of the contention was place on Section 96(2)(b)(ii) of the Act and B. Apparau v. D.M. Rao and Ors. 1973 ACJ 222, New India Assurance Company Ltd. v. Deo Karan and Ors. 1978 ACJ 502 and E. Enjanadevi v. Arurgharar and Anr. 1978 ACJ 625. I have taken the respective submissions into consideration.

17. The contention raises three question for deliberation, viz. (1) the type of the vehicle, (2) the type of licence held by the driver and the breach, if any, by him and (3) whether the defence is available to the insurer.

18. Taking the first question, Ex. Al is the certified copy of the particulars in respect of bus RSQ 8851 which had caused the accident. It may be mentioned that the owner had not produced the certificate of Registration of the bus. The insurer obtained the certified copy Ex. Al from the Registering Authority, Jodhpur. In EX.Al Jodhpur the registered laden weight of bus RSQ 8851 has been shown as 4492 kg.

19. At the relevant time, the dEfinitions of heavy motor vehicle, light motor vehicle and medium motor vehicle, as given in Section 2 of the Act, were as under:

(9) 'Heavy motor vehicle' means a transport vehicle or omnibus the registered laden weight of which, or a motor car or tractor the unladen weight of which, exceeds 11,000 Kilograms'.

(13) 'light motor vehicle' means a transport vehicle or omnibus the registered laden weight of which, or a motor car or tractor the unladen weight of which does not exceed 4000 Kilograms'.

20. A reading of these definitions makes it amply clear that a light motor vehicle was transport vehicle or minibus, the registered laden weight of which did not exceed 4000 Kilograms. Likewise the heavy motor vehicle was transport vehicle or omnibus, the registered laden weight of which exceeded 11,000 Kilograms. The medium motor vehicle was a motor vehicle which was neither a light motor vehicle nor a heavy motor vehicle. A reading of these three definitions makes it amply clear that an omnibus, the registered laden weight of which is more than 4000 Kilograms and less than 11,000 Kilograms was medium motor vehicle. Bus RSQ 8851 with its registered laden weight of 4492 kilogrAms, as shown in Ex. Al. was, therefore, a medium motor vehicle.

21. It is true that in Ex. A. 1 bus RSQ 8851 has been shown as light motor vehicle, but this entry in Ex. A. 1 does not make bus RSQ 8851 as light motor vehicle. It is the registered laden weight which decides the type of vehicle and not the entry made in Ex. Al. A mere entry in Ex. A. 1 by the Registering Authority, describing the bus RSQ 8851 as light motor vehicle, does not make it a light motor vehicle in view of the registered laden weight mentioned therein in Ex. Al. No public Authority can go against the Statute and if some Authority goes against it, the action of the Authority is not legal. It is not the Certificate of Registration but the registered laden weight of the vehicle which decides its type whether it is heavy, medium or light vehicle. The Tribunal was, therefore, right in holding that bus RSQ 8851 was a medium motor vehicle and not the light motor vehicle.

22. Regarding the type of licence of driver Arjunsingh it was stated by him that he had the driving licence of a heavy motor vehicle at the relevant time of the accident. He did not produce his licence. The Insurance company examined PW 3 Takhatmal Lodha, an employee in the Licencing section of the Regional Transport Office, Jodhpur. He stated that a licence to drive light motor vehicle was granted to driver Arjunsingh on December 4, 1975. Lateron July 1, 1980, Arjunsingh was granted a licence for driving heavy motor vehicle. He further stated that prior to July 1, 1980, Arjunsingh had licence to drive only the light motor vehicle. This witness gave statement on the basis of the record kept in the office of Regional Transport Office, Jodhpur. There is not reason to distrust this witness Takhatmal Lodha. It can, therefore, be stated without any hesitation that the driver Arjunsingh had the driving licence only to drive a light motor vehicle and not the medium motor vehicle or heavy motor vehicle. Since bus RSQ 8351 was a medium motor vehicle and Arjunsingh had the driving licence only to drive a light motor vehicle, his driving bus RSQ 8851 at the time of accident was wholly unauthorised.

23. The last question which survives for consideration is whether the insurer can take the defence and avoid its liability to pay compensation on the ground that the bus was being drIven by a driver not holding a valid and proper licence to drive it at the time of the accident. It is well settled that the insurer is not entitled to avoid its liability except on the grounds mentioned in Section 96(2) of the Act. It was contended on behalf of the insurer that there is a stipulation in the insurance policy Ex. Cl to the effect that the person driving holds a licence to drive the motor vehicle. Section 96(2)(b)(ii) entitles the insurer in the instant case to raise the plea that the vehicle was being driven by a person who was not a licenced driver. The insurer was, therefore, rightly exonerated by the Tribunal from its liability to contribute the amount of compensation.

24. Section 96(2)(b) of the Act lays down that an insurer is entitled to defend the action on the ground that there has been a breach of the srecified condition of the policy excluding driving by any person who is not duly licenced. It would be proper to reproduce the relevant provision:

(b) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:

(i) a condition excluding the use of the vehicle:

(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward; or

(b) for organised racing and speed testing; or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle; or

(d) without side-car being attached, where the vehicle is a motor cycle; or

(ii) a condition excluding driving a by a named person or persons or by any person who is not duly licenced or by any person who has been disqualified for holding or obtainINg a driving licence during the period of disqualification; or

25. Thus, if a condition has been incorporated in the policy and it has been breached by the insured, the insurer can avoid the liability on that ground. Here in the instant case, there is a condition incorporated in the policy Ex. C-1 that the liability of the insurer will arise provided the person driving holds a licence to drive the motor vehicle. Arjunsingh was not holding the licence to drive medium motor vehicle. The bus in question was a medium motor vehicle. As such there was a clear breach of the condition incorporated in the policy Ex. C-I. The cases relied upon by Mr. Mehta, learned Counsel for the insurer Company fully support him on this principle.

26. In the case of New Assurance Company Limited (supra) the driver had a licence to drive a light motor vehicle but at the time of the accident he was driving a medium motor vehicle namely, the truck exceeding 4000 kilograms in laden weight. The insurer disputed its liability to pay compensation arising from the accident caused by the truck. His defence was up-held. It was observed:

From the aforesaid discussion it is clear that non-applicant No. 4 was driving the motor vehicle without any valid licence and hence the applicant under the Insurance Policy was not liable to indemnify the insured for the compensation will be required to pay under the award to non-applicants Nos. 1 and 2. For that reason the Claims Tribunal could not have awarded any compensation to non-applicants 1 and 2 as payable by the applicant.

27. A similar view was expressed in the case of B. Apparao (supra) though the defence was not accepted on the ground that the laden weight of the motor vehicle which caused the accident had not exceeded to 4000 kilograms. In that cases, the driver had the licence to drive a light motor vehicle. The insurer could not prove that the registered laden weight of the motor vehicle (truck) exceeded 4000 kilograms and was, thus, a medium motor vehicle. In E. Enjanadevi's case (supra), the driver was driving a tourist car. The driver had a licence to drive a car but no endorsement was there on his licence enabling him to drive a tourist car. There was a stipulation in the insurance policy that the tourist car should be driver by a person who held a licence to drive a tourist taxi. Since the driver-though had a licence to drive a car but not a tourist can, the insurance company was exonerated from the liability to contribute compensation and indemnify the owner of the car.

28. The position, therefore, boils down to this that if a driver holds a licence to drive only a light motor vehicle and he drives a medium motor vehicle, the vehicle will be deemed to have been driven by a driver who had no valid licence to drive and, therefrom the insurer will not be liable. Here in the instant case, all the requirements to make out a valid defence under Section 96(2)(b)(ii) of the Act are there. The insurer is, therefore, not liable to pay compensation or to reimburse and indemnity the owner of the bus RSQ 8851.The approach of the Tribunal in discharging the insurer from the liability is, thus, correct and calls for no interference.

29. For the reasons aforesaid I find no force in this appeal and dismiss the same, but with no order as to costs of this appeal.